James E. Pfander

Constitutional Torts and the War on Terror

This book explores the response of the federal courts to Bivens claims brought to secure remedies for torture and other human rights abuses that were committed in connection with the Bush Administration’s war on terror. It finds that such claims have been almost universally rejected, on one basis or another. Indeed, while some claims may have settled, no federal appellate court has confirmed an award of damages to a victim of torture. As a result, the constitutional limits on torture (if any) in the national security context remain undeveloped and victims have received no formal redress. This book chronicles the failure of Bivens litigation, explores the justifications for judicial silence, and suggests a solution. It finds that the modern federal judiciary has pushed these suits aside as part of a stated reluctance to evaluate matters of national security policy as to which the political branches have greater expertise. Such a deferential approach represents a marked departure from a nineteenth-century approach to remedies for federal government wrongdoing. Back then, such leading jurists and statesmen as James Madison, John Marshall, and Joseph Story applied a narrow test of legality to claims of government wrongdoing. The executive was free to act in a moment of crisis, and could request indemnity from Congress. But as Justice Story explained, federal courts were to ignore proffered excuses based on claims of military necessity and national security: “the Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress.” Federal courts can discharge their judicial duty and reclaim their law-saying function in war-on-terror litigation by adopting changes to current doctrine. The book argues that the Supreme Court should presume the right to sue under Bivens, in keeping with the lessons of the 1988 Westfall Act; it should eliminate the qualified immunity defense in cases in which the victim seeks only nominal damages; and it should recognize that the Constitution applies as a limit on government action taken outside the territorial boundaries of the United States. Two chapters of the book appear here: the Introduction and Chapter 5, responding to arguments against judicial intervention.

Removing Federal Judges

Scholars have in recent years raised a host of questions about Article IIIs provisions for judicial independence. In a provocative recent essay, Professors Sai Prakash and Steve Smith challenge the conventional view that federal judges may be removed from office only through the relatively cumbersome process of House impeachment followed by a trial in the Senate. Prakash and Smith base their argument against impeachment-and-removal exclusivity on the history of good behavior tenure and the role that courts played in adjudicating claims of misbehavior at common law. Prakash and Smith contend that this judicial mode of removing from office remains available for federal judges, something Congress may revive through the passage of appropriate legislation. This Essay disputes the Prakash and Smith thesis. It shows that the English common law mode of removal from office through judicial proceedings had essentially disappeared by the time of the framing. Both in England, where the Act of Settlement of 1701 regulated judicial office, and in the newly independent states, constitutional documents almost invariably assigned the ouster of superior court judges to the legislative branch of government. The drafting and ratification debates reveal that the framers of the federal Constitution made a similar choice, providing a legislative mode of removing misbehaving judges and foreclosing alternative modes. In the end, the evidence sustains the conventional view that the Constitution permits the removal of federal judges only through the legislative process.

Scalia's Legacy: Originalism and Change in the Law of Standing

Abstract Perhaps no single Justice fashioned as many changes to the law of standing as that most gifted originalist, Antonin Scalia. It was Justice Scalia who first deployed twentieth century standing rules to invalidate a citizen suit provision; who promoted the prudential rule against the adjudication of generalized grievances to constitutional status; who pressed to constitutionalize the adverse-party rule; who reconfigured informer litigation to preserve the injury-in-fact requirement; and who recently re-packaged the Court’s old prudential standing doctrine as a merits-based inquiry into the plaintiff’s statutory right to sue. That he has done so much to re-work modern litigation in the name of fidelity to the workways of eighteenth century lawyers “in the English courts at Westminster” testifies to his considerable rhetorical skills. In this essay, I evaluate Justice Scalia’s contributions to this important body of jurisdictional law and then step back to consider his legacy.